ASYLUM AND IMMIGRATION POLICIES OF THE EU

An effective means of maintaining security and stability in Europe?

 

During the Balkan wars of the early nineties, hundreds of thousands of refugees found at least some form of temporary protection in Western European countries. Most of these refugees were spontaneous refugees, that is, they made their way to Western European target countries on their own - often with the help of countrymen abroad.

This year, the war on Kosovo triggered the mass-flight of about one million people from Kosovo and other parts of Serbia. Yet, no more than 33,000 spontaneous refugees managed to enter an EU country and apply for asylum. A further 53,000 Kosovars were evacuated - not to the EU country of their choice, but to an EU country willing to receive them on a temporary and quota basis only.

For obvious reasons, the number of clandestine Kosovo refugees, that is, refugees who entered a Western European country without having registered with the authorities is unknown. What is certain, however, is that the large majority of refugees from the Kosovo war did not leave the so-called "neighbouring region" of Kosovo. Many of them had little other choice than seeking refuge in one of the mass-reception camps put up by NATO, NGOs and the UNHCR in Macedonia and Albania. For those who were not handpicked by UNHCR for evacuation, it was all but impossible to leave these camps with their internment-like conditions. They were virtually trapped in zones close to the border with Serbia that could at any time have become combat zones.

What had happened?

Since the end of the war in Bosnia, a decisive reorientation of Western European and EU asylum and immigration policies had taken place. Reacting to the arrival of ever-increasing numbers of refugees from the Balkan conflict, Western European governments began to re-orient their asylum and immigration policies in the early nineties. The emerging new policy objective focussed on containing refugees and migrant fluxes within their home regions, that is, outside the EU. This containment policy was based on three elements:

  1. Prevent departures from the home regions, if necessary, by the use of coercion;
  2. Make entry into EU territory as difficult as possible.
  3. Dismantle the travel routes used by refugees and migrants, in particular the so-called "Balkan route", in the transit states.

These policy goals referred to a threat scenario, developed after the fall of the Iron Curtain, identifying migrant and refugee influxes as a prime threat, if not the prime threat to public order, security and stability in the West.Such a threat, it was argued, could no longer be tackled by the means of Justice and Home Affairs policies only, but required what the Austrian EU Presidency's Strategy Paper on Asylum and Immigration of July 1, 1998 called a "cooperative, transnational and comprehensive multi disciplinary approach", involving also Foreign Affairs and Defence policies.

One of the earliest advocates of containment policies was Jonas Widgren, the head of the government-sponsored "think tank", International Centre for Migration Policy Development (ICMPD) in Vienna. As early as 1990, shortly after the fall of the Iron Curtain, Widgren strongly argued for what he called a"regionalisation" of refugee policies as a means of preventing refugee influxes to Western Europe.

Between 1991 and 1992 the EU Council introduced a number of policy concepts and measures inspired by a containment approach. However, during the war in Bosnia, the EU Member States did not yet apply these concepts in a concerted and systematic way. An increase in arrivals of Kurds from Northern Iraq and Turkey in 1997 gave new impetus to the development of a policy of containment.

A plethora of overlapping, often secretive trans-national fora, including various EU and Schengen bodies, the quite informal but very influential IGC (Intergovernmental Consultations on Asylum, Refugee and Migration Policies), IOM, the Budapest Group, and ICMPD were working on the same issue: How can the flight routes to Western Europe through South-Eastern Europe be blocked and how can the law enforcement and security authorities of the transit countries concerned be made to cooperate.

In public, the concept of "regionalisation" of refugee policies was presented as a move towards more humaneness: According to the official reading, potential refugees and immigrants should be enabled to stay in their home country or in neighbouring countries willing to receive them with the assistance of the EU. "Cash for Shelter" and "assistance on the spot" became terms à la mode in the field of refugee management. In fact, however, the prime aim was to keep away from Western Europe as many refugees and migrants as possible.

At the end of 1997, this actual focus became ever more apparent. Between Christmas and New Year, two old freighters, the Cometa and the Ararat, packed with mainly Kurdish refugees, arrived at the Italian coast. EU and Schengen Ministers seized this opportunity to launch an all-out war against what the then German Interior Minister, Manfred Kanther termed the "mass influx of illegal immigrants, organised by criminals". The fact that, according to prevailing official assessment in the EU countries, the large majority of Iraqi Kurds were actually people in serious need of protection, no longer seemed to count.

Just a month after the arrival of the Ararat and the Cometa, the EU Foreign Affairs Council adopted an Action Plan on the "Influx of migrants from Iraq and neighbouring regions". The 46 point plan amounted to a compilation of policy guidelines aimed at preventing refugees from leaving their region of origin in the first place, and enabling their forcible return, both to transit and home countries.

A similar, but more specific, plan was adopted by Schengen Ministers, in December 1997. Among other things, the plan called for readmission agreements between the Schengen countries and Turkey, the Czech Republic, Slovakia, Hungary and Slovenia. Further, it provided for the setting up of a Schengen "task force" on immigration and asylum policies with representatives from the six main Schengen target countries of refugees and migrants. The task force was mandated with monitoring and developing measures aimed at reducing migratory pressure.

In summer 1998, it emerged that officials of the K4 Committee under the EU Justice and Home Affairs Council had held several secret meetings in Istanbul and Ankara, with representatives of the Turkish government and the Turkish police and security authorities. According to a confidential K4 Committee report, Turkey pledged to set up so-called "reception houses" for the retention of so-called "illegal migrants" that is, involuntary migrants using Turkey as a transit country on their way to destinations in Western Europe. The K4-report noted that the "[EU] Presidency and the Commission indicated that this could bea project where EU expertise and funding might be of benefit".

On 1 July 1998, the then Austrian EU Presidency presented its controversial"Strategy Paper on Asylum and Immigration Policy". It is the merit of the strategy paper that it cast full light, at last, on extremely disquieting EU policy trends which before could only be guessed at. We owe its remarkably blunt wording to two facts: that it was not intended for disclosure to the public, and that it was drafted by a senior official of the Austrian Interior Ministry, Dr Manfred Matzka, who is known at home for his lack of diplomatic reserve.

The leaking of the strategy paper came as a major embarrassment to a majority of EU member-state governments, who hurried to stress what they called the"unofficial" and "draft" character of the document. Accordingly, the wording of later versions of the paper was somewhat watered down. Yet, there is nothing to suggest that the Council in its majority disapproves the essence of the strategy paper. At an informal meeting of the Justice and Home Affairs Council, Austrian Interior Minister Schlögl noted that all Member Sates accepted the "broad outlines" of the strategy paper. And commenting on the German government's cautious reaction to the paper, the Munich Süddeutsche Zeitung, wrote: "What seems to annoy the government is not the anti-refugee tendency of the paper but its bluntness". As we will see, recent developments confirm this assessment.

The paper recommends that the EU show "political muscle" in preventing refugee and migrant fluxes. Among other things, it openly advocates EU foreign policy action against refugee-generating countries. Europe should "act independently in future in this field and not confine itself to joining in the activities of other bodies". Since "effects on Europe of migration from various conflicts were dramatic", it is "quite legitimate for Europe to take its own decisions regarding intervention in such impending cases". "[D]irect influence and presence is necessary, not only for the prevention and rapid containment of conflicts, but also for the restoration of normality which makes it possible for displaced person to return and stabilises regions in the longer term" (point 55). "Voluntary repatriation" of refugees should be safeguarded, "if necessary using the same means of force employed by the international community for maintaining peace and bringing conflicts to an end" (point 131).

To sum it up, these recommendations amount to a barely veiled call for action, unilaterally decided by the EU, including military "peace keeping" and "peace enforcement" interventions not condonedby the UN Security Council - all this for the purpose of preventing refugee influxes. Significantly, the paper also stressed that the UNHCR which "is today still concerned primarily with the situation of refugees in the State of refuge" should be brought to concentrate on "the States responsible for displacing people or the push factors in the countries of emigration".

Regarding relations with countries of origin and transit the strategy paper recommends a policy of carrots and sticks. Expansion of development aid and economic cooperation with the main regions of emigration to Europe is essential in reducing immigration pressure, the paper acknowledges. However, such privileged treatment granted by the EU must be based on binding commitments made by the third countries concerned to contribute actively to reducing emigration to the EU Member States. "Agreements with migrants' countries of origin can prove a most effective dissuasive instrument in migration management", the paper notes. As an illustration the paper states that "just about all the European Union's bilateral agreements with third States must incorporate the migration aspect...For instance, economic aid will have to be made dependent on visa questions, greater border-crossing facility on guarantees of readmission, air-connections on border-control standards, and willingness to provide economic cooperation on effective measures to reduce push factors".

Referring to the refusal of certain countries of origin or transit to take back people denied stay in the EU, the paper stresses the importance of readmission agreements and proposes the following strategy: either the EU as an entity manages to use its "international and political muscle" to persuade such States to adopt such an agreement, or an international agreement should be introduced, enabling a person's identity to be determined unilaterally by an EU host country and binding the countries of origin concerned to take back their nationals thus identified. Countries of origin must be made to cooperate in determining the identity of immigrants smugglers and their clients. States with a high potential of illegal migrants must be induced to set up effective fingerprint files of their own citizens.

Last not least, the paper suggests that countries of origin and transit should be brought to conclude agreements authorising police of EU countries to engage in hot pursuit and observation across their borders.

As regards action inside the EU, the focus of the paper is on measures enabling the detection and removal of unwanted immigrants through increased surveillance and control. This control must cover "every step taken by a third country national from the time he begins his journey to the time he reaches his destination". The paper recommends "security nets in areas whose geographic or transport characteristics mean that they are particularly exposed, spot checks in the hinterland, unprompted by suspicion, and intensive cooperation on the part of the authorities beyond the sphere of competence of the individual State".

Last December, the EU General Affairs Council decided to set up a High Level Working Group on Asylum and Immigration. This trans-Pillar group of high-ranking officials was commissioned with establishing plans in respect of six main countries of emigration to the EU, including "Albania and its neighbouring regions". Among others, these plans were to focus on: EU assistance in the reception of displaced persons in the home region concerned; readmission agreements; and, assessments as to whether safe return to the country of origin is possible or whether internal settlement alternatives exist. Furthermore, the group was tasked with indicating possibilities for closer cooperation with UNHCR and other intergovernmental, governmental and non-governmental organisations - not in the Western European host countries, but in the regions of origin concerned. In the meantime, the High Level Working Group has drawn up draft action plans for the six regions concerned. Not surprisingly, these plans concentrate on measures of refugee containment. With respect to migration-preventive measures, the report on Albania and the neighbouring region of 23 September 1999, among others, recommends that the EU: "put pressure on the Albanian authorities to make every effort to prevent and combat the traffic in illegal immigration"; "exercise pressure on the Albanian authorities to fully enforce existing readmission agreements"; and, "conclude a general readmission agreement in the context of a future possible stabilisation and association agreement". Furthermore, "Europol should increase its operational capacity to combat illegal trafficking in immigrants" and "enhanced police cooperation" with Albania should be considered.

Under the heading "Containment measures" a July 7 version of the draft Action Plan on Albania proposes among others: To "ease the difficulties which the Albanian authorities may be confronted to while caring for and supervising the journey home of third-country returnees", the EU could finance "transit camps" on the Albanian territory. The camps would "act as a deterrent for illegal immigrants seeking to cross into Europe". In the 23 September version of the report, this last sentence and the term "transit camps" were removed, probably in an effort to appease human rights organisations. However, this changes nothing to the fact, that what the High Level Group is recommending, is the setting-up of EU-sponsored retention camps in countries of transit.

But let me come back to the Kosovo war. During this war, many of the containment-policy measures proposed in the aforementioned EU documents, and especially in the 1998 Strategy Paper, were for the first time applied in a more systematic and concerted way.

The interaction and interrelation between the military- strategic objectives of the NATO intervention on the one hand, and Western European and EU strategy goals in the field of asylum and immigration is striking, indeed.

The prime objective of EU "refugee management" - preventing further arrivals of refugees - may have been the crucial reason for Western European governments to back the US decision to start the bombing of Yugoslavia. Indeed, the declared purpose of the air strikes was neither to topple the Milosevic regime nor to support the cause of the Albanian nationalists, but to "enable" the Kosovar people to stay at home.

It was entirely predictable that, in the event of NATO bombings, the Serbs would retaliate against the ethnic Albanian population by an operation of indiscriminate terror and ethnic cleansing. NATO governments deliberately put up with this eventuality, when launching the air strikes. This gives rise to chilling speculations: could NATO leaders actually have launched the air strikes with an aim (among others) to provoke the Milosevic regime into retaliating by an operation of ethnic cleansing and terror? At first sight, such thoughts may appear aberrant, indeed.

Yet, as a matter of fact, the Serbian operation of ethnic cleansing did allow NATO to put all the blame for the humanitarian catastrophe caused by the war on the "barbarian Serbs" - an argument that was likely to be of good use in justifying later moves by the West to achieve total military, political and police control over Kosovo.

It is obvious too that Western European governments' main concern as regards the Balkans in recent years was not to prevent mass killings. It was not compassion with the victims of violence, human rights violations, ethnic cleansing and economic misery in the Balkans. It was not conflict prevention and mediation that would have allowed people to "stay at home in safety". Instead, their prime concern was to develop instruments of "refugee management" aimed at preventing the departure of refugees from conflict regions.

Everything suggests that the achievement of this goal was not jeopardized, to say the least, by NATO's military intervention. Indeed, while the NATO bombings did trigger a humanitarian catastrophe, the strong presence of NATO military and their "humanitarian" baggage train in the neighbouring region (that is, Albania and Macedonia) made it possible to keep much of the mass flow of refugees away from Western Europe.

In their efforts to prevent the Kosovo refugees from leaving the region, Western European governments did not hesitate to expose hundreds of thousands of Kosovo-Albanian civilians, virtually trapped in the make-shift mass camps in immediate proximity of the Yugoslavian border, to the indisputable risk of being massacred in the event of a Serb advance on Albanian territory.

During the war in Bosnia, the absence of coordination between Western European governments and the lacking mutual approximation of national asylum and immigration policies resulted in the arrival of hundreds of thousands of refugees. Western European governments seem to have learned the lesson. In the context of NATO's war against the FRY, many restrictive instruments conceived during or in the wake of the war in Bosnia were for the first time used in a more coordinated and systematic way.

For example, temporary protection schemes were immediately applied. According to prevailing interpretation of the 1951 Geneva Convention on Refugees, refugee status can be granted on a collective basis and without any further individual examination to groups of persons threatened with persecution on the ground of their ethnic origins. Yet, facing a mass arrival of Kosovo-Albanians, EU governments hurried to stress that refugee status could only be granted as a result of an individual examination and that ethnic Albanians from Kosovo were not eligible for refugee status under the Convention but should be considered as "displaced people" in temporary need of protection instead.

Accordingly, Kosovo-Albanians were either denied access to the asylum examination procedures, or their applications were shelved. Western European governments proved quite successful in redefining the focus of refugee aid away from monitoring and ensuring the reception of refugees in Western host countries to "assistance on the spot". By more or less reluctantly accepting this redefinition of their tasks, international, governmental and non-governmental organisations made themselves the (more or less) involuntary accomplices of a ruthless policy of refugee containment.

Since the Kosovo war, "refugee management" consists in preventing refugees from fleeing, rather than in receiving them. In pursuing this goal, human lives do not count. As Swedish journalist Birgitta Albons wrote from a camp in Macedonia, during the war: "Every day, desperate men and women in the camps ask me, often in Swedish, whether I can help them escape from this hell... The truth is that wealthy Europe does not want to have more refugees. The truth is that Europe is helping Milosevic to maintain people in terror, to kill many Kosovo-Albanians".

The introduction of the concept of "assistance in the region of origin", that is containment, appears to have killed off all discussions on "burden sharing" with respect to the reception of refugees in Western Europe. In this war, the EU Member States have demonstrated beyond doubt that they prefer evading the burden of refugees to sharing it. We might soon discover that the difference between burden evasion and burden elimination, is smaller than we might have expected.

The war in the Balkans has come to an end - at least for the time being. While ethnic Albanians are quickly returning, on a more or less voluntary basis, to a country in ruins, we are witnessing a new mass exodus - this time of the Kosovo-Serbian and Roma population. Most of these people have little other choice than going to Serbia, Montenegro, and Bosnia. In Bosnia, an already fragile process of reconstruction and confidence-building has been set back by years as a result of the war on Kosovo. Four years after the end of the war in Bosnia, more than 80 per cent of the Bosnian refugees have not been able to return to their homes. In this context, the mass arrival of Serbian refugees from Kosovo threatens to become the spark causing a new explosion of the Bosnian powder keg.

The FRY is already coping with hundreds of thousands of refugees. The country lies in ruins, its economy is destroyed. Millions have lost their work, and a period of political unrest and violence must be reckoned with. The economy and the political stability of neighbouring countries like Albania, Macedonia, Bulgaria and Romania has suffered serious blows.

Thus, nothing authorises us to expect that the proclaimed end of the war on Kosovo means an end to the refugee problem in the Balkans. Hundreds of thousands, maybe millions of people in all parts of the region might find that they have no future there and try to make their way to the West. Whether we call them refugees, displaced people or economic migrants will be of little practical importance in coping with the problem of involuntary migration. If the West continues to ignore the root causes of the conflict in the Balkans, there is a risk not only for Kosovo but for the entire Balkan region of being transformed into a heavily guarded protectorate of NATO and the EU, where much of the activities of international military and police forces, as well as local authorities under their orders, will focus on forcibly preventing would-be refugees and migrants from leaving the region. The Balkan region soon might resemble a gigantic "reception house" for "illegal migrants".

That the policies of policing, deterrence and containment described above cannot be justified from a humanitarian point of view seems obvious to me. The question is whether they are an efficient means of maintaining public order, security and stability in Western countries, as claimed by its advocates.

I find this very hard to believe. On the contrary, rather than enhancing security, more policing, deterrence and containment measures are likely to further fuel confrontation, exclusion and violence and thereby themselves become a prime threat to freedom, security and justice in our own Western European societies. The central assumption underlying EU asylum and immigration policies is the almost religious belief in various forms of "policing away" the phenomenon of migration and flight. This is quite amazing given the manifest failure of prevailing repressive and dissuasive policy measures - a failure openly acknowledged, for example, in the Austrian Strategy Paper.

As a matter of fact, while legal immigration is made ever more difficult, illegal immigration is on the increase. Repressive asylum and immigration policies have actually only achieved to push ever more people into illegality. Is this astonishing?

Quite obviously, it makes no sense for a would-be immigrant to apply for an entry visa, when he or she knows in advance that legal entry and stay will be denied. Nor does it make sense for a refugee to apply for asylum, when experience teaches that by making an application you reveal your identity and your whereabouts to authorities whose prime concern is to lock you up, turn down your application and remove you from the country as quickly as possible. No wonder, then, that we are currently witnessing the emergence of what one could call "shadow societies" inside the Western European countries. They are formed by the steadily growing number of people excluded from the visible, official society ("illegal immigrants" in the first place) who have learned that any contact with State authorities (including welfare, health and education) entails only trouble.

Thus, their prime concern is to remain "invisible". For the authorities, these people do not exist, they are legally non-existent, they are literally "outlaws".

Yet, even outlaws must live. In their constant struggle for survival they are likely to become an easy prey for the illicit labour market and all sorts of criminal networks in search of both victims and recruits. Thus, shadow societies constitute a growing ground for crime, social conflict and violence.

Not either can the problem of migration and flight be tackled by transforming Europe into a fortress and neighbouring buffer-states into de facto protectorates. Indeed, sending back migrants to third states or containing them within their home regions merely amounts to shifting the potential of conflict geographically and temporarily. This shortsighted policy of problem-export is bound to contribute to the destabilisation of the countries surrounding "fortress Europe". This can not be in the interest of Western European security. Involuntary migration is a global problem, and global problems cannot be shuffled off on neighbours. They cannot be tackled with policing, unilateral action and arrogant super-power diplomacy.

Just as South African apartheid policy fostered violence and led to the fall of the society it was meant to protect, a European apartheid policy is likely to undermine our own security, our own freedoms and our own rights. Dr Matzka is wrong. What Europe needs, is not more muscle, but more brains.

Nicholas Busch

 

International Seminar 'EU: Area of Justice or Orwellian Nightmare?', University of Tampere, 13 October 1999.